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    • Post in Suing a parcel delivery company when you don't have a direct contract with them – third-party rights Copy of judgment available

      BankFodder posted a post in a topic,

      We have finally managed to obtain the transcript of this case.

      The judge's reasoning is very useful and will certainly be helpful in any other cases relating to third-party rights where the customer has contracted with the courier company by using a broker.
      This is generally speaking the problem with using PackLink who are domiciled in Spain and very conveniently out of reach of the British justice system.

      Frankly I don't think that is any accident.

      One of the points that the judge made was that the customers contract with the broker specifically refers to the courier – and it is clear that the courier knows that they are acting for a third party. There is no need to name the third party. They just have to be recognisably part of a class of person – such as a sender or a recipient of the parcel.

      Please note that a recent case against UPS failed on exactly the same issue with the judge held that the Contracts (Rights of Third Parties) Act 1999 did not apply.

      We will be getting that transcript very soon. We will look at it and we will understand how the judge made such catastrophic mistakes. It was a very poor judgement.
      We will be recommending that people do include this adverse judgement in their bundle so that when they go to county court the judge will see both sides and see the arguments against this adverse judgement.
      Also, we will be to demonstrate to the judge that we are fair-minded and that we don't mind bringing everything to the attention of the judge even if it is against our own interests.
      This is good ethical practice.

      It would be very nice if the parcel delivery companies – including EVRi – practised this kind of thing as well.

       

      OT APPROVED, 365MC637, FAROOQ, EVRi, 12.07.23 (BRENT) - J v4.pdf
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Parcel delivery insurance is prohibited under section 57 – Consumer Rights Act – Read about It Here and in The Times.

Major Help needed with Cabot and CCJ**WON** Case dismissed

gazhodge1981

By gazhodge1981
in Financial Legal Issues

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Posted
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I'm guessing you put the set aside application quoting CPR 13.3...

 

Reasons being... Claim form not served... good chance of successful defence.

 

At the hearing.. the judge will have all this but hopefully you will have a copy of your original application... don't worry if not...

 

Basically your dad just has to say he's requesting a set aside of the default judgement under CPR 13.3 as the Papers were not served and he was not given an opportunity to defend himself. He also believes that he has a good chance of successfuly defending the claim.

 

The judge may then ask him what his defence is and away you go.....

 

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Posted
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Don't worry... just make a point of getting it in if you can :) or if the judge asks...

 

Just have a little sheet of paper for your dad with that basic info on so that if the judge asks why are you asking for this set aside he can mention it. As an LIP they can't expect him to know everything and of course he's been doing a lot of research since he applied. ;)

 

Have you contacted the court about going in as a McKenzie friend?

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Ok.. I'm sure it'll be fine..

 

Any more questions just post them up... I've gotta go to work now so if you don't get replies from anyone else I'll be back later and have a look.

 

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Hi Gaz,

 

Hope you got on ok at the court earlier..

 

I think that if Cabot turn up to oppose the set aside the focus will be on whether or not your dad received the Letter before Action, Claim Form etc. therefore it would be up to your dad to put them to strict proof that the papers were delivered by asking for production of receipts of recorded/special delivery and a signature to say he had received them...

 

If they don't turn up and the hearing goes unopposed then it should be reasonably plain sailing.

 

The next thing is to give a copy of the defence to Judge and once he/she has had a look and asked questions hopefully the set aside will be granted..then ask him/her to request disclosure in his/her directions of the documents that you've listed above..

 

Until you get in there it's difficult to know how the hearing will go and what route it will take. It could be over and done with in a flash, set aside granted, or it could be more involved with lots of questions.. the best thing is be prepared for anything... go in wearing belt and braces and you won't be caught with your trousers down. :roll:

 

Spam. :)

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Posted
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Looks Ok to me Gaz..

 

You may find that the Judge asks you what you need produced or you may have to wait for a window of opportunity to instigate it. Either way Cabot probably haven't got it anyway..:rolleyes:

 

Just make sure that if the judge asks your dad 'Do you owe the money' your dad says 'NO'

 

 

Spam. :)

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Hi Gaz,

 

If your dad was going to use 'no paperwork' as the only reason and he had no defence then the judge would likely say no to the set aside.

 

But he is saying he has not been sent any paperwork, therefore he had no opportunity to submit a defence and he has a very good chance of defending the claim successfully... it will be up to the judge but there shouldn't be a problem... if it doesn't go your way, make sure you have leave to appeal his decision because in my opinion it would be a very uninformed judge who would decide aginst your dad in this case.

 

As soon as you get in the room just make sure your dad has everything to hand to give to the judge if he/she asks and the relevant CPR relating to your request/application.... oh and make sure your mobiles switched off..;)

 

Very best of luck again,

 

 

 

Spam.:)

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:D

 

Just a reminder... make sure dad has pen and paper to jot down any directions given by judge... If the set aside goes to plan he will probably give a date to file and serve the defence... normally in about 28 days as that's what he'd have if he'd received the claim form originally... but it's well worth taking notes so you can keep to the deadlines if for any reason the orders given by the judge take a while to come through from the court.

 

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Posted
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mexwav4ys.gifmexwav4ys.gifmexwav4ys.gif

 

Well done... a big pat on the back to you and your dad... :D

 

Don't worry about the defence tonight... just celebrate... we can get that sorted over the next couple of days... it won't be much different to what you submitted today, just a bit more involved and case law to back it up.

 

There's even a chance that Cabot will discontinue now that they've lost the judgement and it will be an uphill struggle for them now to get it back...

 

Well done again, you did good.

 

Spam. :)

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Hi Gaz,

 

That 'agreement' doesn't look to be too good... what is that 'signature strip' attached too? It's obviously been cut off so it's not 'within the four courners' of any document that I can see..:cool:

 

I think It's safe to say in the defence that you haven't received a copy of an enforceable agreement and put them to strict proof that it exists..

 

We'll have to crack on with the defence this week... are you ok doing it or do you need help?

 

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Hiya... If they were cheeky enough to show up at trial with any documents that you had asked for and they hadn't previously produced then they would be in deep do do with the judge and you would have to request an adjournment... but I think it's highly unlikely..:)

 

I'll give you a hand with the defence... it'll probably be very similar to the one I intended to use..

 

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Hi Gaz,

 

Here's the defence.. it's been altered from the one FG did for me... make sure you go through it properly and put the correct dates in etc. You also need a counterclaim but I'm not too sure on those so I'll have a look round and see what I can come up with..

 

Spam.:)

 

BTW don't forget to head it up the same as the set aside one i.e case number, claimant defendant etc.

gaz Dad Defence.doc

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You shouldn't need anything else at this stage.. you just need to file the defence at court and serve a copy on Cabot by 30.9.09 as per directions of the judge...

 

After that's done your dad should receive an Allocation Questionnaire from the court ... when you get that let us know and I'll try and enlist further help as I didn't get up to that bit.... (although it looks like I'm going to now 'cause my lot are playing silly beggars. :rolleyes:)

 

As I said, hold fire on sending it anywhere at the mo as we need to sort out the counterclaim.

 

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You have to send the defence to Cabot... when it comes to it, leave it as late as possible and then send it Guaranteed Special Delivery on the 29th so it arrives dead on the 30th and they have to sign for it.. ;)

 

Spam. :)

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Hi Gaz,

 

The only 'Counterclaim' I've seen so far is with regards to getting the 'alleged agreements' judged as unenforceable... so that Cabot can't sell the debt on or put in another claim on the same documents... but I'm still looking for other examples as I will have mine to do as well now.

 

Spam. :)

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Hi Gaz,

 

Sorry been a bit waylaid this weekend...

 

At present I would suggest you just tag this on to your defence...( without the underlining, and give it a consecutive number to the last one on your defence.) It's from one of IGNM's

 

Counterclaim

 

9. The Defendant seeks a declaration from the Court that the aforesaid agreements are unenforceable in that they do not contain the statutory particulars and they are not properly executed.

 

 

 

This is the only one I could find...

 

If it isn't judged unenforceable then there is the possibility that Cabot could try again so it's worth putting it in as a counterclaim.

 

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Do I keep the Counter claim bit on aswell ??

 

Yes... it's just like a continuation of your defence which is why you need to continue with the next consecutive number

 

Spam.:)

 

You need to take the 9 out and put 18 for your counterclaim..

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:D

 

You're doing good Gaz. You can get the defence into the court as soon as ,but as I said before leave it as long as poss with Cabot so they only just get it on time....

 

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Will do, what sort of time scale does the process normally take??

 

I believe the next step should be that you will receive an AQ (Allocation Questionnaire) from the court, perhaps in the next week or so... a lot of it depends on how busy your court is.

 

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